vs. ) CASE NO. 78-810
) P.D. NO. 3320
ERNEST C. BOURNE, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on June 14, 1978, at Clearwater, Florida.
For Petitioner: Joseph A. Dahery, Esquire
For Respondent: Hugh E. Reams, Esquire
By Administrative Complaint filed March 27, 1978, the Florida Real Estate Commission (FREC) seeks to revoke, suspend or otherwise discipline the real estate broker's license of Ernest C. Bourne, Respondent. As grounds therefor, it is alleged that on August 21, 1972, in submitting his application for licensure as a real estate salesman, Respondent omitted a 1964 arrest on a criminal charge in South Carolina and he was subsequently found guilty of a crime involving moral turpitude; that on February 4, 1974, in submitting his application for licensure as a real estate broker, Respondent intentionally concealed from FREC an arrest in South Carolina in 1964; and that by reason of the foregoing Respondent is guilty of course of conduct which shows that he is so incompetent, negligent, dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation may no safely be entrusted to him. These charges allege violations of Sections 475.25(1)(e), (2) and (3), Florida Statutes.
The parties stipulated that Respondent is registered with FREC as alleged.
Petitioner then presented Exhibits 1, 2 and 3, Bourne's application for registration as a salesman and broker and court records involving Bourne in South Carolina in 1964, and rested. Thereafter Bourne testified in his own behalf and submitted two exhibits, one of which is the deposition of the lawyer who represented him in the criminal charges brought against him by South Carolina in 1965.
In his application for registration as a real estate salesman submitted August 21, 1972 (Exhibit 1), Respondent, in response to Question 9 which asked if he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, answered yes and listed "1958 W. Va--traffic, 1964 So. Carolina-Traffic, 1/16/70 Fla--Traffic, 6/2/71 Fla--Traffic, and 9/17/71 Fla-- Traffic." In his application for registration as a real estate broker submitted February 4, 1972 (Exhibit 3), Respondent answered the same Question 9 exactly as he had done on his application for salesman. Court records from South Carolina (Exhibit 2) show that Ernest Clyde Bourne, Jr., was arrested on a warrant charging him with stealing a boat and trailer of the value of more than $200; that on November 30, 1964, he posted an appearance bond in the amount of $9,000; that he was indicted on March 3, 1965, on an indictment alleging that Bourne, on August 12, 1964, at Georgetown, S.C., feloniously did steal, take and carry away one 25 foot Bertran boat and one six wheel trailer of the value of more than fifty dollars the proper goods and chattels of Earnest Mohler, Jr.; and that on September 21, 1965, he pleaded nolo contendere to receiving stolen goods, the Court entered judgment that he be confined for six months or pay a fine of $500, and that the fine was paid on September 21, 1965.
In his defense, Respondent testified that, prior to acquiring the boat he was charged with stealing, he had owned two or three boats, the last of which was destroyed in a fire while at a Princeton, West Virginia, storage during the winter of 1964; and that he was looking for a replacement for the boat. While enroute from his home in Princeton to Myrtle Beach, South Carolina, he stopped at Columbia, South Carolina, to visit a boat yard and, while looking at a boat, was approached by a person representing himself as a salesman. The salesman told him that he knew of a 25 foot Bertram boat in an estate that may be for sale. When Bourne showed interest, he advised that he would know in about a week and Bourne was to call him. In due course, Bourne called the "salesman" who said he had the boat and arranged for Bourne to pick up the boat at Columbia. The address at which Bourne came for the pick up was a corner containing a Texaco station and a wrecked car lot. After inspecting the boat Bourne paid $5,000 cash and executed a lien on a trailer for $2,300. No record was subsequently found that the lien had been recorded and Bourne retained no copy. Bourne towed the boat and trailer to his home in West Virginia where the boat was registered and used by Bourne during the remainder of the summer.
At this time Bourne was enrolled at Stetsen Law School in Florida, where his mother resided. Bourne returned to West Virginia in November, 1974, and enroute back to Florida with the boat in tow, he was stopped by the police and arrested at Orangeburg, South Carolina, and charged with larceny of the boat. The sheriff from Georgetown, South Carolina, picked up and drove Bourne to Georgetown where he spent the weekend in jail awaiting the posting of bond.
At his trial in September, 1965, Bourne appeared, represented by his lawyer from West Virginia, and a South Carolina attorney. The attorneys arranged for a nolo contendere plea which Bourne entered under the impression he was pleading to an attempt to commit a misdemeanor.
Exhibit 4, the deposition of the attorney who represented Bourne at the trial, confirmed that Bourne pleaded nolo contendere to an attempt to commit a misdemeanor in a negotiated plea worked out with the prosecuting attorney. Although the attorney characterized the charge to which Bourne pleaded as "no
offense," the negotiated settlement included a $500 fine. This was described in the deposition as a forfeiture of a $500 bond (apparently connected to the
$5,000 appearance recognizance previously entered to get Bourne released from jail) and as "the [law] firm check in the amount of $500 which was left with the clerk of the court when the clerk presented a blank form for Bourne to sign. It is presumed the "blank form" subsequently became the judgment page of Exhibit 2 on which Bourne plead nolo contendere to receiving stolen goods and the judge signed the sentence to be confined at hard labor for six (6) months or pay a fine of five hundred dollars ($500).
CONCLUSIONS OF LAW
The evidence is unrebutted, and, in fact, it was admitted by Respondent in his answer, that he failed to include the South Carolina arrest for larceny of a boat on his application for registration with the FREC as a salesman in 1972, and as a broker in 1974. This is an offense for which, if known, would have justified the Commission in denying registration pursuant to the provisions of Section 475.18, Florida Statutes, which provides in pertinent part:
If application and supporting documents on their face show that the applicant is qualified, but from complaints, or information received, or from investigation, it shall appear to the Commission or Chairman, at any time before its initial certificate is delivered, that there may be cause to deny registration, the Commission or Chairman may order an information to be filed, notice served, and hearing before an examiner and the Commission held, as hereinafter provided.
Therefore, had the answer to Question 9 on the application included the 1964 South Carolina arrest, the application would have been denied unless applicant could show that despite this old arrest and subsequent judgment, he was at the time of the submission of his application, a person of good moral character. Failure of applicant to include this unfortunate incident on the application deprived the applicant of the opportunity to show to the Commission that, despite this early offense, be was a person of good moral character and qualified for registration. It also deprived the Commission of information that could have lead to applicant's disqualification.
Section 475.25(2), Florida Statues, is intended to cover this situation where an applicant fails to include disqualifying information on his application and provides in pertinent part:
The registration of a registrant shall be revoked, if such registration, or a certificate issued thereon, is found to have been obtained by the registrant by means of fraud, misrepresentation, or concealment. . .
By failure to include this arrest in response to Question 9 on the application, Respondent concealed information which could have lead to his disqualification for registration.
While this is an incident which Respondent undoubtedly would like to expunge from his memory and record, it is inconceivable that either the
Respondent or his lawyer could have viewed his arrest, release on $5,000 bail, and a subsequent $500 fine following a negotiated plea as no offense or even an offense less serious than a traffic violation.
It is also inconceivable that, after arranging a negotiated plea in the judge's chambers with the prosecuting attorney, the accused would be adjudged guilty of a charge which did not constitute an offense and still be sentenced to six months in jail or a $500 fine; or that he would be requested to sign a blank form subsequently filled in with pen and ink to show his plea.
Section 475.25(1)(e) provides the registration of a registrant, who has been guilty of a crime against the laws of any state of an offense involving moral turpitude, may be suspended for a period not to exceed two years. It is to be noted that this section applies only to a registrant and not to a conviction prior to becoming a registrant. Accordingly, this section of the statute is not applicable to the Respondent in this case and it is not necessary to determine whether the offense of which he was convicted involved moral turpitude.
Respondent is also charged in the Administrative Complaint with violation of Section 475.25(3), Florida Statutes, which provides in pertinent part:
The registration of a registrant may be revoked if the registrant. . .shall be found guilty of a course of conduct and practices which show that he is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him.
Failure to include an arrest in 1964, on applications for registration submitted in 1972 and 1974, does not constitute the course of conduct proscribed by Section 475.25(3). Here Respondent has acted as a broker for some four (4) years, handling escrow accounts without any evidence presented that any of these individuals with whom he sustained such a confidential relationship suffered any loss or that any of these funds were mishandled. The purpose of Section 475.25(3) is to weed out unscrupulous registrants who misuse clients' funds, and not to revoke the registration of one who files an incomplete application.
From the foregoing it is concluded that by failing to include his 1964, South Carolina arrest on his applications for registration, Respondent obtained these registrations by means of concealment of material information which could have resulted in the denial of his registration; and Section 475.25(2), Florida Statutes, requires the revocation of a registration so obtained.
It is further concluded that Respondent is not guilty of violation of Section 475.25(1)(e) and Section 475.25(3), Florida Statutes. It is therefore
RECOMMENDED that the registration of Ernest C. Bourne be revoked. It is further
RECOMMENDED that Bourne be given an opportunity to show that he is now a person of good moral character fully qualified for registration and upon such a
showing his registration be restored without having to comply with the other requirements for a new registration.
DONE and ENTERED this 6th day of July, 1978, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Joseph A. Doherty, Esquire Staff Counsel
Hugh E. Reams, Esquire Post Office Drawer 14233 Clearwater, Florida 33733
